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ARTICLE Valuing Speech and Open Source Intelligence in the Face Of ARTICLE Valuing Speech and Open Source Intelligence in the Face of Judicial Deference __________________________ Andrew V. Moshirnia∗ Abstract In seeking to more effectively wage the war on terror, the United States government has come close to declaring war on speech related to terrorism. The Government has taken steps to silence and punish foreign propagandists, foreign reporters, and even Americans who have produced “coordinated” speech with foreign terrorist organizations. While this latter attempt to chill speech raises serious constitutional concerns, the United States Supreme Court has seen little wrong with this approach. Indeed, the Court contorted existing First Amendment jurisprudence in Holder v. Humanitarian Law Project so as to uphold 18 U.S.C. § 2339B, an expansive material support statute encompassing “coordinated” speech. These positions, no doubt taken with American safety in mind, not only damage our First Amendment jurisprudence, but also threaten to choke off the supply of open source intelligence, which derives from publicly available sources. This intelligence is especially vital in the modern war on terror taking place on the ground as well as on the Internet. This Article highlights the extraordinary deference shown by the Court in upholding a material support statute criminalizing non-violent speech and examines other governmental actions designed to chill foreign speech. This piece examines the deleterious effects chilling foreign speech will have on domestic security, detailing the importance of open source intelligence. Finally, this Article concludes by investigating the likely effect the Government’s positions will ∗ JD, May 2011, Harvard Law School; PhD—Informational Technology, May 2008, University of Kansas; Law Clerk to the Hon. Richard D. Cudahy, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit. Thanks are due to Jack Battaglia, Aaron Dozeman, Sonia Fleury, Hank Greenberg, Jordan Mobley, and Stephanie Kuhlmann for their excellent assistance. I would like to thank Professors Phil Malone, Brian Sheppard, and especially the late Bill Stuntz for their guidance and support. Copyright © 2013 by the Presidents and Fellows of Harvard College & Andrew Moshirnia. 2013 / Valuing Speech and OSINT in the Face of Judicial Deference 386 have on Crisis Mapping, an exciting new technology that leverages open source intelligence, social media, and horizontal information sharing, to empower citizens and coordinate humanitarian efforts. I. Introduction Commentators often implore the Court to resist the false dichotomy of liberty and security. In times of crisis, governmental actors seem all too willing to sacrifice the former to guarantee the latter.1 Recently, the United States government has taken steps to chill the speech of foreign combatants, non-governmental organizations (NGOs), lawful permanent residents, and even the foreign and domestic press. The Government has adopted the position that First Amendment speech protections simply do not apply to trials of enemy aliens in American courts, a measure designed to silence foreign propagandists.2 Furthermore, the Government has previously detained an individual at Guantanamo Bay on the basis of his employment as a foreign reporter.3 Finally, the Government has claimed that association with terrorists may allow the criminalization of domestic speech that would otherwise enjoy First Amendment protection. While these actions are taken with security in mind, they undermine the ability of the United States to analyze and anticipate future threats. In the age of open source intelligence (OSINT), which is intelligence produced from publicly available information,4 our security often derives from the foreign production of 1 See Korematsu v. United States, 323 U.S. 214 (1944) (upholding internment of Japanese- Americans); see also Dennis v. United States, 341 U.S. 494 (1951); Whitney v. California, 274 U.S. 357 (1927) (criminalizing all association, even non-violent association, with the communist party); Gitlow v. New York, 268 U.S. 652 (1925) (reintroducing the “the bad tendency test” found in Abrams v. United States, 250 U.S. 616 (1919) to punish political speech that might endanger the government); Schenck v. United States, 249 U.S. 47 (1919) (upholding the 1917 Espionage Act). 2 While courts are often cognizant of chilling, there is no shortage of justifications for why a speech restrictive statute does not have the effect of chilling. See e.g., United States v. Al- Bahlul, 820 F. Supp. 2d 1141, 1250 (USCMCR 2011) (arguing that the decision does not chill speech). The court’s justification disregards the effect penalties would have on future speech. 3 DEP’T OF DEF., UNCLASSIFIED SUMMARY OF EVIDENCE FOR ADMINISTRATIVE REVIEW BOARD IN THE CASE OF SAMI MUHEIDINE MOHAMED AL HAJ 33–35 (Sept. 4, 2006), http://www.dod.mil/pubs/foi/detainees/csrt_arb/ARB_Round_2_Factors_499- 598.pdf#33 [hereinafter HAJ REVIEW BOARD]. 4 National Defense Authorization Act of 2006, Pub. L. No. 109-163 § 931(a)(1), 119 Stat. 3136, available at http://www.gpo.gov/fdsys/pkg/PLAW- 109publ163/html/PLAW-109publ163.htm. 387 Harvard National Security Journal / Vol. 4 terror-related intelligence. Cutting off the flow of terror-related foreign and domestic speech will undermine that intelligence, and in turn, American safety. It is up to the Court to serve as a restraint on such reactions. However, the United States Supreme Court, in Holder v. Humanitarian Law Project,5 (HLP) recently embraced exactly this trade-off, restricting some speech linked to foreign terrorist organizations (FTOs). There, the Court held that 18 U.S.C. § 2339B, a material support statute that restricts “material support” to foreign terrorist groups, could criminalize speech related to foreign terrorist groups, provided that the speech was made in “coordination” with those groups. To facilitate this trade-off, the Court diluted the exacting standard usually demanded for content-based speech restrictions and conducted a curtailed policy and ends-only analysis determining that reducing advocacy for terrorists is essential to the war on terror.6 Even if this conclusion were correct, the Court damaged our understanding of First Amendment doctrine through the application of a strange variation of strict scrutiny devoid of any means analysis.7 In this rare situation, the First Amendment doctrine of strict scrutiny was perfectly equipped to deliver the right result. In its analysis, the Court ignored the important relationship between foreign speech and domestic safety. By manipulating established standards to elevate security over liberty, the Court served neither principle. It is unclear how speech associated with foreign terrorist groups deserves less First Amendment protections when that speech does not advocate imminent lawless conduct. Consequently, the nebulous “coordination” test will likely chill otherwise constitutionally protected speech. HLP will signal to both Congress and lower courts that content- based speech restrictions may survive strict scrutiny, provided that the Government cites a compelling interest in fighting the war on terror. Indeed, lower courts have followed suit, sustaining material support convictions involving the production of speech that would clearly fall below the legal standard for unprotected incitement speech. 5 130 S. Ct. 2705 (2010). 6 Id. at 2724–29 (using much of the opinion to justify the statute in light of the government’s evidence as to its necessity for the war on terror). 7 See HLP, 130 S. Ct. at 2734 (Breyer, J., dissenting). 2013 / Valuing Speech and OSINT in the Face of Judicial Deference 388 HLP not only appears to be constitutionally dubious, but it will also likely decrease the ability of the intelligence community to fight the war on terror. Deviating from established jurisprudence to protect § 2339B will likely rob us of valuable OSINT at exactly the time when the need for OSINT is most acute. Fear of terrorism and a desire to defer to the executive caused the Court to underestimate the dangers of chilling domestic and foreign speech, including—most ironically—speech that is necessary to advance counterterrorism initiatives.8 These policies threaten academics, journalists, and other individuals with access to terrorists groups who produce OSINT, a vital stream of information for a domestic understanding and prosecution of the war on terror.9 While each of these positions is individually harmful, in combination they will exact far more damage on the Government’s intelligence efforts. Part II of this Article details the vital importance of OSINT in the war on terror, repeated Congressional findings of the same, and recommendations for stronger OSINT collection, analysis, and dissemination.10 Part III of this Article explores three recent examples—two by the Executive Branch and one by the Supreme Court—of government actions that disrupt OSINT. The three examples discussed in Part III are (1) the Executive Branch’s view that “incitement” speech—a category of speech that receives no First Amendment protection—is broader in scope in the context of an enemy alien’s solicitation trial; (2) the Executive Branch’s treatment and detention of foreign reporters; and (3) the Supreme Court’s adoption of an expansive definition of a material support statute in Holder v. Humanitarian Law Project.11 This case is given special attention because it provided the Court with an opportunity to value speech and because recent jurisprudence counseled a different result. Part IV of this Article discusses the dangers of chilling both domestic and foreign speech and why this chilling implicates OSINT.12 Part V of this Article discusses the possible 8 For the proposition that these holdings arise out of a desire to defer to the executive see, for example, HLP, 130 S. Ct. at 2727–30. See also id. at 2727 (finding that “evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference”). 9 Brief for the Academic Researchers and the Citizen Media Law Project as Amici Curiae Supporting Respondents/Cross-Petitioners, Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) (Nos. 08-1498, 09-89) 2009 WL 4271309 [hereinafter CMLP Brief].
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